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A prenuptial agreement is a legal agreement between two fiancées who are engaged to be married. This agreement outlines certain property rights and financial arrangements that the parties agree to as a condition of getting married. The agreement allows the parties to avoid default rules about property in case of divorce or death.

A prenuptial agreement can protect a person’s property interests. Prenuptial agreements can protect a spouse from assuming the debts of the other and determine which property is passed onto other beneficiaries after death. They can also clarify the financial rights and responsibilities during a marriage. They may also help to avoid long and expensive disputes in case the couple decides to get divorced.

Prenuptial agreements can help protect your assets in case of divorce or death. You can designate that certain property will be considered your own separate property and not subject to any claims by your spouse. They can protect family businesses and your children’s interests in your efforts and assets. They also provide clarity and a plan about how to distribute property if the spouses get divorced so contention is limited. A prenuptial agreement provides certainty in uncertain situations.

If you do not have a prenuptial agreement and you get divorced, state laws determine how your property will be divided. In community property states, this means that the property you earned or acquired during the marriage may be subject to a 50/50 split. In the remainder of states, this means that the marital property would be subject to “equitable division,” which is a fair distribution of the property between the parties, but not necessarily an equal split. Even though most states do not divide separate property during a divorce, many states allow the court to consider the existence and value of separate property when dividing marital property. This may translate to a spouse having more assets receiving a lower value of the distribution of the marital estate.

Like most state laws, requirements for prenuptial agreements are based on state law. Your prenuptial agreement must comply with the laws of your state. Some common trends among many states regarding prenuptial agreements include:

  • Disclosures - The parties may have to provide complete and accurate disclosures about their respective income, assets and debts.

  • Written - Generally, a prenuptial agreement should be in writing and signed by both parties. It should be clear to understand.

  • Fair - Courts may not enforce an agreement that is obviously one-sided and unfair. Courts may consider whether the circumstances surrounding the prenuptial agreement were unfair, such as asking a bride to sign it or else immediately before the wedding. Additionally, courts may consider whether the substantive information included in the prenuptial agreement for fairness.

  • Legal representation - You are not required to be represented by an attorney. However, if you choose to hire an attorney, you and your fiancé cannot share the same lawyer. Even if you choose not to hire counsel, the court may still enforce the prenuptial agreement if you and your had the opportunity to consult with a lawyer and simply chose not to.

A prenuptial agreement is a legal agreement between two fiancées who are engaged to be married. This agreement outlines certain property rights and financial arrangements that the parties agree to as a condition of getting married. The agreement allows the parties to avoid default rules about property in case of divorce or death.

  • Provisions that Encourage Divorce: All states have public policies that favor marriage and discourage divorce. Prenuptial agreements cannot encourage divorce, such as giving a spouse an incentive to get divorced.

  • Anything that has to do with child support: A prenuptial agreement cannot waive child support or dictate how much support should be paid. The laws of your state will determine, and/or the court has the duty to properly calculate the amount of child support that should be paid should you divorce in the future. So, child support cannot be contracted in advance.

  • Anything that has to do with child custody:Likewise, prenuptial agreements may not contract away the rights of a child and dictate which parent will have primary custody. The prenuptial agreement also should not place restrictions on child custody or visitation.

  • Classification of Property: A prenuptial agreement can classify which property is "separate property" and what will be considered "marital property." This classification allows a couple to avoid the state’s default laws that would otherwise apply in the event of divorce. For example, you or your fiance may classify a condo or home you owned prior to marriage as "separate property," meaning that should you divorce in the future, that property would remain solely yours.

  • Debts : A prenuptial agreement may specify that each spouse is only responsible for his or her own debts.

  • Provisions for Children from a Previous Relationship: A prenuptial agreement may be able to protect the property interests of children from another marriage in case the spouse passes away. The spouse may wish to leave separate property to their children from prior relationships. This may be especially important to preserve a family heirloom that is cherished by the lineal descendants.

  • Maintenance of Separate Finances: A prenuptial agreement may specify that the spouses will keep certain finances separate during the marriage, and specify which funds are marital. This can allow spouses to keep control of their own bank accounts and avoid comingling funds that could otherwise result in changing separate funds to marital funds.

A prenuptial agreement can help you and your future spouse decide how you will support yourselves financially throughout your marriage, whether your assets will be considered separate property or marital property during the marriage and what will happen if your marriage ever ends in divorce.

For example, a prenup can help you and your future spouse organize how household expenses will be shared. Will they be paid in proportion to your respective incomes? Will they be split equally down the middle? What about if one or both of you has children from another relationship? Will either of you support those children financially when they are in college, or beyond? These are important conversations to have no matter what, and a prenuptial agreement can help facilitate these discussions.

What about if you or your future spouse is closing in on retirement? Well, you must consider estate planning. Do you want to leave their money to your children, or provide financially for a new spouse? Or both? To remedy any concerns of estate plans post-marriage, a prenup can specify that an estate plan must be put into place after the couple marries, or can specify what terms will occur upon death of one of the parties. A provision like this will allow both parties’ families to feel at ease.

You are not required to hire an attorney, but most states will look at whether or not you or your future spouse had the opportunity to obtain legal advice and whether one of both of you were represented by an attorney. Was there enough time to find an attorney before the wedding and you chose not to? Did you just sign the agreement without even reading it the night before the wedding without an opportunity to consult a lawyer?

In addition, it is worth having an attorney review your prenuptial agreement with you, if you have questions. If your assets are complex (ie significant family inheritance or business, etc), it may be a good idea to have a lawyer review your agreement.